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2012 DIGILAW 75 (CHH)

SHAMIM BANO v. ASRAF KHAN

2012-03-01

MANINDRA MOHAN SHRIVASTAVA

body2012
JUDGMENT :- Manindra Mohan Shrivastava, J. [1] Heard. This petition has been filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (in short "the Cr.P.C.") aggrieved by order dated 6-12-2004 passed by the Special Judge & Additional Sessions Judge, Durg in Criminal Revision No. 275/1999, by which, revision against order of the Magistrate, rejecting application for grant of maintenance under Section 125 of the Cr.P.C., has been affirmed. [2] Relevant facts, necessary for decision of the present case and issue involved therein, are that marriage between the petitioner and the respondent was solemnized on 17-11-1993. Soon thereafter, dispute arose between the parties and after having stayed in the matrimonial house for about 40 days, the petitioner came back to her parental house, alleging commission of offence under Section 498A of the IPC against the respondent and his family members. The petitioner moved an application under Section 125 of the Cr.P.C. against the respondent before the Judicial Magistrate First Class, Durg for grant of maintenance on the pleadings that the respondent has neglected to maintain the petitioner; the petitioner is unable to maintain herself; she has been subjected to cruelty, and therefore, entitled to maintenance of Rs. 2,000/-per month. After enquiry, the application was rejected by the Magistrate holding that the allegation of cruelty is not proved and the petitioner is not justified in living separately, hence, the petitioner is not entitled to grant of maintenance. Aggrieved by the said order, a revision was preferred, which was also dismissed giving rise to instant petition. [3] Learned counsel for the petitioner contended that it was specifically pleaded, and there is overwhelming evidence led by the petitioner before the learned Magistrate to prove that the petitioner, soon after the marriage, was subjected to cruelty in connection with demand of dowry, as respondent and his family members were not prepared to allow the petitioner to reside in the matrimonial house and her father was compelled to take her back, whereafter the respondent neglected and deserted the petitioner, entitling the petitioner to grant of maintenance. Learned counsel for the petitioner submitted that the evidence has been disbelieved mainly on account of decision of the criminal case, in which, respondent and his family members have been acquitted ignoring that against the order of acquittal, appeal has been filed, and the same is pending. Learned counsel for the petitioner submitted that the evidence has been disbelieved mainly on account of decision of the criminal case, in which, respondent and his family members have been acquitted ignoring that against the order of acquittal, appeal has been filed, and the same is pending. Learned counsel further contended that there is specific evidence that soon after the marriage, the petitioner was harassed and the Court below ought to have appreciated that in the summary proceedings, the burden of proof is not as high as is required in civil proceedings. It is also argued that the Courts below have ignored to take into consideration that in view of the cruelty meted out to the petitioner, she is fully justified in living separately, and therefore, that could not be made a basis to refuse grant of maintenance. [4] Per contra, learned counsel for the respondent-husband opposed the prayer. While supporting the finding recorded by the Magistrate and the order passed by the Revisional Court, affirming the finding and conclusion of the Magistrate, he has raised an additional ground in defence at this stage by submitting that in any case, application under Section 125 of the Cr.P.C. for grant of maintenance was not maintainable, because during the pendency of the application before the Magistrate, the respondent had divorced the petitioner. He submits that once there is a divorce, divorced Muslim women could only take recourse to the provisions contained in the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as "the Act of 1986") and in the present case, the petitioner has already taken recourse to the provisions contained in Section 3 of the Act of 1986, by moving an application under Section 3(2) of the Act of 1986, therefore, in the absence of any option given by the parties, as required under Section 5 of the Act of 1986, claim of maintenance, under Section 125 of the Cr.P.C., would no longer be maintainable. He submits that the remedy of the petitioner is only to claim maintenance in accordance with the provisions contained in Section 3 of the Act of 1986. He submits that the remedy of the petitioner is only to claim maintenance in accordance with the provisions contained in Section 3 of the Act of 1986. Further submission is that even assuming that the application under Section 125 of the Cr.P.C. would be maintainable, the order passed by the Courts below do not call for any interference by this Court in this proceedings, because the Courts below have properly appreciated the evidence in the light of the pleadings of the parties and have recorded a specific finding of fact, which is supported by relevant evidence. Learned counsel submits that in the garb of petition under Section 482 of the Cr.P.C., the petitioner could not call upon this Court to interfere with the concurrent finding recorded by both the Courts below against the petitioner and in favour of the respondent. [5] Though, issue with regard to maintainability of application under Section 125 of the Cr.P.C. was neither raised before the learned Magistrate nor before the Revisional Court, learned counsel for the respondent has argued that the divorce between the parties is admitted as also the fact that the petitioner, after divorce, also moved an application under Section 3(2) of the Act of 1986 for re-turn of properties and Mahr, the question relating to maintainability of proceedings under Section 125 of the Cr.P.C., after the divorce between the parties, does arise for consideration. [6] On such objection being taken during the course of arguments, learned counsel for the petitioner submitted that notwithstanding the fact that there was a divorce between the parties, during the pendency of the proceeding under Section 125 of the Cr.P.C. before the Magistrate, application under Section 125 of the Cr.P.C. would not cease to be maintainable, even though, the petitioner moved an application under Section 3(2) of the Act of 1986 for return of property and Mahr because in that application under Section 3(2) of the Act of 1986, the petitioner had not claimed maintenance. In her submission, an occasion for giving option by the parties would arise only when application under Section 3(2) of the Act of 1986 is moved for grant of maintenance as well. In her submission, an occasion for giving option by the parties would arise only when application under Section 3(2) of the Act of 1986 is moved for grant of maintenance as well. Therefore, it is contended, non-submission of option is inconsequential and does not adversely affect the maintainability of proceedings under Section 125 of the Cr.P.C. In support of her submission, learned counsel has mainly placed reliance on the decision of the Supreme Court in the cases of Danial Latifi and another v. Union of India, 2001 AIR(SC) 3958, Shamim Ara v. State of U.P. and another, 2002 AIR(SC) 3551, Iqbal Bano v. State of U.P. and another, 2007 AIR(SC) 2215, Zahirunnisa v. Wahab Mohammed, 2005 2 CgLJ 223 , Shabana Bano v. Imran Khan, 2010 AIR(SC) 305, Velukutty v. Prasannakumari, 1985 CrLJ 1558 , Smt. Sugandhabai and others v. Vasant Ganpat Deobhat and another, 1992 CrLJ 1838 . [7] In support of objection with regard to maintainability of petition under Section 125 of the Cr.P.C., learned counsel for the respondent has placed reliance on the decisions in the case of Mohd. Umar Khan v. Gulshan Begam w/o Mohd. Umar Khan and another, 1991 MPLJ 586 and Sayad Newaj Ali alias Nati v. Rasida Begum, 1991 1 DMC 319 and the decision of the High Court of Madhya Pradesh in Civil Appeal No. 103/ 1992, decided on 13-2-1995. [8] The factual foundation for objection with regard to maintainability of application under Section 125 of the Cr.P.C. at the instance of the petitioner has not been substantially disputed by the learned counsel for petitioner during the course of arguments. The order passed by the Magistrate records that divorce between the parties, during the pendency of the proceedings before the Magistrate, is an admitted fact. A perusal of the record shows that application for grant of maintenance was filed on 6-9-1994 before the Magistrate. In rely to application for amendment dated 18-2-1999 filed by the petitioner, the respondent has stated that there was divorce between the patties on 5-5-1997. There is also an application for dismissal of the petitioner's application for grant of maintenance filed by the respondent on 5-5-1997 stating that the respondent-has sent a notice informing that he has divorced the petitioner. In reply thereof, the petitioner has stated that she is entitled to maintenance from 6-9-1994 till 5-5-1997 and also entitled to amount of Mahr. There is also an application for dismissal of the petitioner's application for grant of maintenance filed by the respondent on 5-5-1997 stating that the respondent-has sent a notice informing that he has divorced the petitioner. In reply thereof, the petitioner has stated that she is entitled to maintenance from 6-9-1994 till 5-5-1997 and also entitled to amount of Mahr. In para 5 of the her testimony, the petitioner has stated that she has filed a petition for return of property and Mahr. Father of the petitioner, namely Sahban Ali, has also stated in para 4 of his testimony that during the pendency of the case, the petitioner received notice of divorce on 5-5-1997. The respondent-husband in para 4 of his testimony has stated that he has divorced the petitioner, which fact has also been stated in para 7 of his testimony in his cross-examination. [9] Moreover, it is a fact that the petitioner had moved an application under Section 3(2) of the Act of 1986 before the Magistrate, in which, orders were passed and matter travelled up to this Court at the instance of the respondent in a petition under Section 482 of the Cr.P.C., registered as M. Cr. C. No. 5307 of 2000, which has been finally dismissed vide order dated 28-9-2011. Further, it has not been substantially disputed by learned counsel for the petitioner that the petitioner had, in fact, moved an application under Section 3(2) of the Act of 1986 for return of gifts, properties and also for payment of amount of Mahr. It could not be substantially disputed by learned counsel for the petitioner, though time was granted to verify, that no application exercising statutory option under Section 5 of the Act of 1986 was moved by either of the parties either separately or jointly. [10] The examination of the aforesaid facts based on the material available on record and the submission made by learned counsel for the parties during the course of arguments lay necessary factual foundation to enable this Court to answer the preliminary objection with regard to maintainability of application under Section 125 of the Cr.P.C. [11] The constitution Bench of the Supreme Court in its authoritative pronouncement in the case of Mohd. Ahmed Khan v. Shah Bano Begum and others, 1985 AIR(SC) 945 held that according to Muslim law, a husband's liability to provide maintenance for his divorced wife for the period of iddat, does not contemplate, or countenance the situation envisaged by Section 125 of the Cr.P.C. It was held that it would be incorrect and unjust to extend the principal of Muslim Law to cases, in which, the divorced wife is unable to maintain herself. The Supreme Court came to the conclusion that if the divorced wife is unable to maintain herself, the husband's liability ceases with the expiration of the period of iddat, but if she is unable to maintain herself, after the period of iddat she is entitled to take recourse under Section 125 of the Cr.P.C. The Parliament, thereafter enacted the Muslim Women (Protection of Rights on Divorce), Act, 1986, which protects the rights of Muslim women, who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. The constitutional validity of the Act of 1986 was came up for consideration before the Supreme Court in the case of Deanial Latifi . The constitutional validity of the Act of 1986 was upheld and the Supreme Court summed up its conclusions in para 36 of its judgment, which is extracted below :-- 36. While upholding the validity of the Act, we may sum up our conclusions : (1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1) (a) of the Act. (2) Liability of a Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to the iddat period. (3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after the iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance. (4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India. Subsequently in the case of Iqbal Bano , the law laid down by the Supreme Court in the case of Danial Latifi , has been reaffirmed by the Supreme Court. [12] Recently in the case of Shabana Bano , the Supreme Court has reiterated the settled legal position that even if the Muslim women has divorced, she would be entitled to claim maintenance from her husband under Section 125 of the Cr.P.C., after the expiry of period of iddat as long as she does not remarry. [13] The survey of the aforesaid decisions of the Supreme Court, therefore, leaves no manner of doubt that the Muslim women is entitled to claim maintenance under Section 125 of the Cr.P.C., even beyond the period of iddat, if she is unable to maintain herself. [14] The question, however, which fall's for consideration in the present petition, on its peculiar facts, is whether in case where divorce women had taken recourse to the provisions contained in Section 3(2) of the Act of 1986, by moving an application, after divorce and there being no option exercised in terms of provisions of Section 5 of the Act of 1986, pending application under Section 125 of the Cr.P.C. for grant of maintenance filed prior to divorce, would be maintainable or not. [15] In order to decide the aforesaid question, with regard to maintainability of petition filed under Section 125, Cr.P.C. in the factual background of the present case, it is necessary to examine the statutory scheme of the Act of 1986. The statutory scheme of option provided in Section 5 of the Act of 1986, is extracted hereinabove:-- 5. [15] In order to decide the aforesaid question, with regard to maintainability of petition filed under Section 125, Cr.P.C. in the factual background of the present case, it is necessary to examine the statutory scheme of the Act of 1986. The statutory scheme of option provided in Section 5 of the Act of 1986, is extracted hereinabove:-- 5. Option to be governed by the provisions of Sections 125 to 128 of Act 2 of 1974.-- If, on the date of the first hearing of the application under sub-section (2) of Section 3, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may; be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. [16] A bare reading of the aforesaid provision on its reasonable and logical interpretation would show that the provision pre-supposes filing of application under Section 3(2) of the Act of 1986. It provides that, if on the date of first hearing of application under Section 3(2) of the Act of 1986, a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), and file such affidavit or declaration in the Court hearing the application, the Magistrate shall dispose of such application accordingly. In the explanation, it has been provided that the date of the first hearing of the application means the date fixed in the summons for the attendance of the respondent to the application. In the explanation, it has been provided that the date of the first hearing of the application means the date fixed in the summons for the attendance of the respondent to the application. The statutory scheme of the Act of 1986, is therefore quite clear that in a situation where the application under Section 3(2) of the Act of 1986 has already been moved, applicability of the provisions contained in Sections 125 to 128 of the Cr.P.C., in the matter of claim of maintenance, would depend upon exercise of statutory option by the divorced women and her former husband by way of declaration either in the form of affidavit or any other declaration in writing in such format as may be prescribed either jointly or separately, that they would prefer to be governed by those provisions of the Cr.P.C. Present is not a case, where after divorce no steps were taken by the petitioner to claim her right to get Mahr or other properties as provided under Section 3 of the Act of 1986. [17] The Peculiar facts of the present case are that the petitioner though moved an application for grant of maintenance before divorce during the pendency of the 125 of the Cr.P.C. proceedings, there was a divorce between the parties, even she filed an application under Section 3(2) of the Act of 1986 for grant of Mahr as also for return of properties given to her at the time of marriage by relatives and her friends. Therefore, in such an eventuality, applicability of provisions of Section 125 to 128 of the Cr.P.C. would depend upon exercise of statutory option envisaged under Section 5 of the Act of 1986. The logical conclusion, would therefore, be that if no option has been exercised, the provision of Sections 125 to 128 of the Cr.P.C. will not be applicable and the remedy of the divorced Muslim women would be to claim maintenance only under the provisions of the Act of 1986. [18] In the present case, there is no dispute that during the pendency of the application for grant of maintenance under Section 125 of the Cr.P.C., filed by the petitioner before the Magistrate, there was a divorce between the parties. [18] In the present case, there is no dispute that during the pendency of the application for grant of maintenance under Section 125 of the Cr.P.C., filed by the petitioner before the Magistrate, there was a divorce between the parties. The petitioner did not dispute the factum or validity of divorce and she took recourse to the provisions of Section 3 of the Act of 1986, in which, orders were passed in her favour, aggrieved by which, revision was preferred by the respondent, which was also dismissed, leading to filing of petition under Section 482 of the Cr.P.C. before this Court, registered as M. Cr. C. No. 5307 of 2000, which too has been dismissed vide order dated 28-9-2011. In fact, that case was earlier linked with this petition vide order dated 18-7-2011 and later on that petition was decided by this Court separately upholding the order passed by the Magistrate and the Revisional Court on petitioner's application under Section 3 of the Act of 1986. [19] Learned counsel for the petitioner strenuously urged that even after coming into force the Act of 1986, the right of divorce Muslim women to claim maintenance, even after the period of iddat, is not lost. She has submitted that while examining the constitutional validity of the Act of 1986, the Supreme Court in the case of Danial Latifi, 2001 AIR(SC) 3958 clarified this aspect by interpreting the provisions of the said Act in a manner, which saves its constitutionality and categorically held that the Act actually codifies the law as stated in Shah Bano case. Thereafter, in a decision in the case of Mohd. Ahmed Khan, 1985 AIR(SC) 945, it was held that petition under Section 125 of the Cr.P.C. would be maintainable as long as divorced Muslim women does not re-marry. Therefore, notwithstanding divorce between the parties, the application under Section 125 of the Cr.P.C. would continue to be maintainable. [20] The constitution Bench of the Supreme Court in the case of Mohd. Ahmed Khan, 1985 AIR(SC) 945, it was held that petition under Section 125 of the Cr.P.C. would be maintainable as long as divorced Muslim women does not re-marry. Therefore, notwithstanding divorce between the parties, the application under Section 125 of the Cr.P.C. would continue to be maintainable. [20] The constitution Bench of the Supreme Court in the case of Mohd. Ahmed Khan, 1985 AIR(SC) 945, and in post 1986 Act decisions in the cases of Danial Latifi, Iqbal Bano, 2001 AIR(SC) 3958, no doubt has settled the legal position that even after enactment of the Act of 1986, the divorced Muslim women is entitled to claim maintenance under Section 125 of the Cr.P.C., but in a fact situation like the present one, where divorced Muslim women moved ah application under Section 3(2) of the Act of 1986, applicability of Section 125 to 128, Cr.P.C. would depend upon statutory option available to the parties under Section 5 of the Act of 1986. Present is not a case where the petitioner did not at all take recourse to the provisions contained in the Act of 1986. In the present case, the petitioner in fact took recourse to the provisions contained in Section 3 of the Act of 1986. In such a situation, legal position would be different as far as applicability of Section 125 of the Cr.P.C. is concerned. The divorced Muslim women has been given an option either to proceed under the provision of the Act of 1986 for grant of maintenance or opt to be governed by the provisions contained under Section 125 of the Cr.P.C. The submission, is therefore, without merit. [21] In view of the aforesaid discussion, this Court is of the considered opinion that once the petitioner has taken recourse to the provisions of Section 3 of the Act of 1986, in the absence of any option under Section 5 of the Act of 1986 exercised by the petitioner and her husband, petitioner's claim for grant of maintenance under Section 125 of the Cr.P.C. would not be available, though her remedy to claim maintenance under the provisions of Section 3 of the Act of 1986, as interpreted by the Supreme Court in the case of Danial Latifi, 2001 AIR(SC) 3958 is available to her. It is, however, be noted that the application for grant of maintenance under Section 125 of the Cr.P.C. was filed in the year 1994, when divorce had not taken place between the parties. [22] In the case of Iqbal Bano, 2007 AIR(SC) 2215, this aspect was considered by the Supreme Court, wherein it was held that the Act of 1986 only applies to Muslim divorced woman and not to women who are not divorced. Therefore, the claim of the petitioner for grant of maintenance under Section 125 of the Cr.P.C., until she was divorced, is maintainable, though after divorce and filing of application under Section 3 of the Act of 1986, the claim of maintenance, in the absence of exercise of option to be governed by Section 125 of the Cr.P.C., was required to be considered in accordance with the provisions contained in the Act of 1986. Admittedly, after divorce, the petitioner has moved an application under Section 3 of the Act of 1986 and orders were also passed by the Magistrate and affirmed by the Revisional Court, which matter travelled up to this Court by filing a petition under Section 482 of the Cr.P.C., registered as M. Cr. C. No. 5307 of 2000, which was finally decided vide order dated 28-9-2011. [23] Therefore, the examination of the claim of the petitioner for grant of maintenance has to confined only up to the period before her divorce. In the application for grant of maintenance, what has been substantially pleaded is that, after marriage, the applicant was harassed in the name of dowry and that after she was taken to her parental house as a part of the ritual after expiry of period of 40 days, from the date of marriage, no attempt was made to take her back to matrimonial house, in this manner, it is pleaded, that her husband neglected to maintain her. In reply, allegations have been denied on the pleadings inter alia, that when relatives of the husband came to the parental house of the petitioner for taking her back to matrimonial house, the petitioner's family; members were enraged, because respondent-husband had not come and those, who had come were assaulted, leading to registration, of a criminal case. In reply, allegations have been denied on the pleadings inter alia, that when relatives of the husband came to the parental house of the petitioner for taking her back to matrimonial house, the petitioner's family; members were enraged, because respondent-husband had not come and those, who had come were assaulted, leading to registration, of a criminal case. It has been also pleaded that the allegations of cruelty or demand of dowry are after thought, because when criminal case was registered on the allegation of assault on family members of the husband, after almost four months, as a counter blast, a case alleging commission of offence under Section 498A of the IPC was registered. [24] The learned Magistrate examined the evidence on record in the light of pleadings of the parties and came to conclusion that the allegations of cruelty is not made out and on the other hand, the evidence shows that when relatives of the husband had gone to the house of the petitioner-wife, they were assaulted. The learned Magistrate took into consideration that the criminal case alleging commission of offence under Section 498A of the IPC, finally resulted in acquittal as no cruelty was found proved. On scrutiny of the evidence, the Magistrate, therefore, came to the conclusion that the petitioner did not go back to her matrimonial house and, is therefore, residing separately without any sufficient cause and as such, not entitled to grant of maintenance. The Revisional Court also scrutinized the evidence and concurred with the finding of the Magistrate. [25] In the pleadings, it has been alleged, though vaguely, that the petitioner was harassed in connection with dowry. No specific details as to in what manner, she was subjected to cruelty and what was demanded-The petitioner was examined as a witness and she admitted that at the time, when she was taken to her parental house for ritual, after 40 days of the marriage, there was no dispute between the parties. The petitioner has not stated anywhere as to in what manner, she was subjected to cruelty except making vague statements that she was scolded. What was demanded has also not been stated. The father of the petitioner, who has been examined, has made contradictory statement in respect of the application for grant of maintenance. The petitioner has not stated anywhere as to in what manner, she was subjected to cruelty except making vague statements that she was scolded. What was demanded has also not been stated. The father of the petitioner, who has been examined, has made contradictory statement in respect of the application for grant of maintenance. Though, at one place, he says that when the petitioner came back to parental house, after 40 days of the marriage, she did not state about any dispute, and at the other, place, he has stated that Rs. 50,000/- was demanded as required for seeking employment of the husband. There is a contradiction in the evidence on record, which shows, and in fact, it has been pleaded and has also come in evidence that at that time, the respondent was in job. It has not been disputed that the criminal case alleging commission of offence under Section 498A of the IPC ended in acquittal. However, it has been pleaded that against the order of acquittal, appeal has been filed and there is no evidence to show that the appeal was allowed by holding that the allegations of cruelty are true. There is evidence on record that at the time, when the relatives of the husband had gone to take the petitioner back to her matrimonial house, they were assaulted, leading to registration of a criminal case. On the aforesaid material, both the Courts below have recorded a finding that the petitioner was not justified in living separately. [26] In the considered opinion of this Court, the finding recorded by both the Courts below are supported by cogent evidence and cannot be said to be either perverse or in violation of settled principles with regard to appreciation of evidence. Most importantly, the approach of the Court below to reject the allegations of cruelty in the light of acquittal in the criminal case instituted at the instance of the petitioner lends support to the finding of the Court below. Therefore, no ground is made out to interfere with the orders of the Courts below, in exercise of power conferred under Section 482 of the Cr.P.C., particularly taking into consideration that the petitioner has been paid interim maintenance during the pendency of the proceedings up to the date of her divorce. This Court had already dismissed the respondents petition (M. Cr. This Court had already dismissed the respondents petition (M. Cr. C. No. 5307 of 2000) against the order passed by the Magistrate directing payment of Mahr amount as also return of gifts and other articles including ornaments. In the result, the petition is liable to be dismissed and is accordingly dismissed. No orders as to cost. Petition dismissed.